Monday, January 19, 2015

Does Netflix TOS Trump Copyright Law?

Dear Rich: You’ve written that classroom use of Netflix might get a copyright pass but I have a question about that section of the copyright law (Section 110). The Netflix TOS reads: "The Netflix service, and any content viewed through our service, are for your personal and non-commercial use only. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable, license to access the Netflix service and view movies and TV shows through the service on a streaming-only basis for that purpose. Except for the foregoing limited license, no right, title or interest shall be transferred to you. You agree not to use the service for public performances."Wouldn’t the Netflix terms of service trump the exemption based on the idea that the acquisition for a non-private/personal purpose is illegal thereby nullifying the exemption?
It's true that Terms of Service (TOS) and End User License Agreements (EULAs), if properly executed, are considered legally enforceable and can force copyright law to the curb. But we can't say for sure how it would play out as no court appears to have addressed whether a license can defeat the educational exemption in Section 110. More importantly, the reader noted that when he contacted Netflix, they readily agreed with his educational use. That makes good legal and public relations sense. No company wants a Macarena on their hands!